On June 26, 1997 the Supreme Court ruled that the Communications Decency Act of 1996, the CDA, which was passed into law by Congress early in February, 1996 and signed by the President on February 8, was unconstitutional.
Background and Responses
As soon as the act, authored by Senator Exon as an amendment to the omnibus Telecommunications Reform Act, was passed, individuals began exposing the far-reaching implications of its language and lack of clarity. Whereas previous law established that obscene content and child pornography were not protected under the Constitution, the language of the CDA sought to protect minors from "indecent" and "patently offensive" communications on the Internet without clarifying or defining the terms. This constituted a much broader and more ominous stroke of intent to control content. Some changes were made in the language during House and Senate committee discussions. However, attempts to include more restrictive terminology - "harmful to minors" - were struck down. "Knowingly" was added to minimally refocus and diminish the weight of liability for service providers. The intent of Congress seemed clear - that anyone using a telecommunication device who made, transmitted or otherwise made available indecent or patently offensive material to minors would be subject to criminal charges and punishments.
Immediately, civil rights groups filed suit. First they sought to halt prosecutions under the new law, then to challenge its constitutionality. A three-judge District Court approved a preliminary injunction, thus holding off enforcement of the act while questions of constitutionality were decided by a higher court.
Two major lawsuits were merged and then argued together to the Supreme Court on March 19, 1997. Finally, on June 26, the Court delivered its succinct opinion. "Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge District Court that the statute abridges 'the freedom of speech' protected by the First Amendment." With these words, college and university communities, in particular, breathed a sigh of relief.
Why should institutions of higher education take these deliberations so seriously? Of course they have an academic interest in the issues facing the Supreme Court and in Freedom of Speech but there is more to this response. Do colleges and universities have an investment in providing "patently offensive" material to their populations? No. To understand their reaction to the Supreme Court decision one must better understand the mission and nature of these environments.
As the law was written, many college and university personnel sincerely believed that they could not obey the law and meet its intent. Their choices were to keep the content from the students, or keep the students from the content. They saw both strategies as impossible to implement. Technical realities made the first impossible while the very nature of college populations doomed the second. Many believed that not only could they not obey the law, but that they should not, as it was written. First, let's examine the reasons why they could not.
Keeping the Content From the Students
In the late 1980s, colleges and universities, pushed forward by developments within the computer industry and by their own need for faster and greater access to information, began building new electronic learning, teaching, communications and research environments. They built fiber optic and wire networks that stretched across the campuses into every building, residence hall, classroom, laboratory, library and museum. They built public computing sites populated by hundreds of computers, printers, scanners and other technical devices. Expansion of these networks continues today.
Access to information and resources is possible from nearly anyplace on the campus and from remote study and research sites as well. These environments are open places into which information comes from many sources. The networks connect a variety of information technology tools that allow students and faculty to create documents including text, sound and, increasingly, video; share information and documents with others near and far; store information; and do all of these processes rapidly and easily.
This design for ease of transport and open access to information of all types, this provision of technology as a tool for whatever the teaching or learning exercise may be, was consciously built into the systems. It was felt to be instrumental in meeting the mission of colleges and universities - the creation of an environment where freedom to create and play with ideas and concepts was central. The electronic networked infrastructures were built without either the intent or the capability of controlling the content that flows over the optical fiber or cable.
Increasingly, the experience of college and university life includes the use of technology. It includes exposure to the vast information resources on individual campus electronic networks, and also opportunity for access to information on other campuses, in other states, and even in other countries through the Internet. Electronic communications - e-mail - is so pervasive on campuses that millions of messages per day flow over campus networks during peak periods.
The Supreme Court understood this new environment. They understood that increasingly such electronic information sharing and communication is available not only on college campuses, but also through the Internet and World Wide Web to organizations and individuals throughout the country and world. They called it "a unique and wholly new medium of worldwide human communication" (Justice Stevens' opinion).
For colleges and universities, Congress's attempt, in the CDA, to criminalize the "knowing" transmission of "offensive or indecent" messages to any recipient under 18 years of age was felt to be impossible to implement. On a campus such as the University of Michigan, a community of approximately 80,000 individuals, one might expect, indeed know, that sometime during the course of the year, or month, or week, or even a day, someone would surely be transmitting material that another felt to be indecent or patently offensive and that within the community some individuals are under 18 years of age.
Keeping the Students From the Content
College and university communities include minors, albeit older minors - individuals who were the target of the intended protection of the CDA. College and university communities consist of faculty, staff and students who range in age from 14, for those in programs with early admissions, to 100 or more years for some who are professor emeriti. By far, the largest portion of the community is 18 or older adults. First-year students are predominately between 16 and 18 years of age, considered older minors, when they begin their college experience. Regardless of age, as members of these communities, they have access to the full range of resources that are available for teaching, learning, research and communications.
Most parents are aware that their "older minor" is entering into an adult environment where they will be exposed to ideas and behaviors that they may not previously have experienced. Exposure to this diversity, these new ideas and behaviors, is considered an integral part of the learning experience.
For college and university personnel to obey the proposed CDA without critically altering the nature of the environment, they would have to keep students from the content by taking one of several unacceptable actions.
1) Colleges could refuse to admit anyone under 18 years of age. For many students this would, perhaps critically, interrupt the learning experience between high school and college. They would have to wait until 18 to continue their formal education. For some of the most brilliant students, those who must accelerate their educational experiences due to the advanced pace of their learning, higher education would not be available to them for several years.
2) Colleges could prohibit access of anyone under 18 years of age to the campus network, to the resources of the library, to e-mail, to the Internet and World Wide Web. This would significantly change the nature of the college experience and the teaching, learning and research opportunities that exist for those in the older minor age group. It would prohibit offering some courses that integrate students based on their interests and abilities, rather than their age. Administratively, it would likely be impossible to manage. It would also provide unequal educational opportunities for individuals who would otherwise be full members of the university community. In a purposeful knowledge environment, learning is not segmented into zones but permeates every aspect of the experience.
The District Court understood the impact of the proposed law on all environments in which both minors and adults speak and learn. "The District Court found that there is no effective way to determine the identity or the age of a user who is accessing material through e-mail, mail exploders, newsgroups or chat rooms . . . Moreover, even if it were technologically feasible to block minors' access to newsgroups and chat rooms containing discussions of art, politics or other subjects that potentially elicit 'indecent' or 'patently offensive' contributions, it would not be possible to block their access to that material and still allow them access to the remaining content, even if the overwhelming majority of that content was not indecent" (Justice Stevens' majority opinion).
Institutional Mission and Community & Values
Colleges and universities took the proposed CDA seriously because they felt they could not obey the law due to technological realities and due to the nature of their populations. But probably most importantly, they felt they should not obey the law because it affronted one of the most basic liberties, the cornerstone of academic freedom and teaching - freedom of speech. Indeed, it was itself offensive to the values and mission of institutions of higher education and in direct conflict with them. In Campus Life in Search of Community (Carnegie Foundation for the Advancement of Teaching, 1992), Ernest Boyer writes, "a college or university is an open community, a place where freedom of expression is uncompromisingly protected and where civility is powerfully affirmed."
The teaching and learning experience comes not from control of the thinking and/or behaviors of the students in this environment; by the more mature adults or authorities imposing their judgments on the less mature. It comes in reasoned discourse that follows a new idea or behavior, the weighing, questioning, comparing and contrasting of that idea with others. The real teaching moment is thought to exist in the exchanges of diverse ideas and thoughts, not in the monitoring and control of content or the resources for accessing the information, whether they be technical or not. The more firmly one believes a truth, the more offensive an opposing view may appear.
In December 1995, testimony was given in support of free speech for the preservation of academic inquiry and research during the CDA hearings. "Academic discourse is often offensive, but it is also protected speech for very good reasons. Academic speech may seem innocuous, but it is often offensive to those whose cherished beliefs are challenged by the process of identifying the truth" (Harry Erwin).
The Constitution was written because this belief in open, unfettered communication was seen as critical to free peoples and active citizenship within a democracy. "The peculiar evil of silencing the expression of an opinion is that it is robbing the human race, posterity as well as the existing generation, those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier expression of truth, produced by its collision with error" (John Stewart Mill, On Liberty).
As it was written, the CDA sought to control speech based on content and did so with vague, undefined terminology, so broad as to far surpass the previously defined areas of non-protected speech, "obscenity" and "child pornography." The CDA, in its two parts, differed in language, further obscuring the interpretation of the law; in the first part referring to "indecent" and in the second part to material that "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." Justice Stevens, in delivering the opinion of the Court, wrote: "The general, undefined terms 'indecent' and 'patently offensive' cover large amounts of nonpornographic material with serious educational or other value . . . The vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech . . . The statute abridges 'the freedom of speech' protected by the First Amendment."
What Did it Mean: The Challenge Ahead
In these actions of Congress, the President and the Supreme Court, the dynamic aspects of our government where powers are separated were brilliantly illuminated. The act of defining the boundaries of civil liberties was played out in dramatic and forceful terms. Should colleges and universities just sigh in relief having watched these issues unfold? No. A much greater challenge lies ahead. Real responses are required - actions dictated by our missions as institutions of higher education and actions dictated by recognition of the fragility of these new electronic environments and their potential impacts on liberty. Four specific actions are recommended:
Engaging the issues
Teaching the power and exercise of free speech
Developing campus policy against censorship, and
Promoting the democratization of the Net.
1. Engaging the Issues
First, we must recognize that the CDA did not become law without being the sincere expression of some constituency's beliefs and thoughtful work. We cannot minimize the concern for minors out of which the CDA sprung nor the fact that the Act contained purposefully chosen and revealing wording, "patently offensive" and "indecent."
Now that the threat of censorship seems to be lessened, college and university communities need to look deeply into what is beneath this debate. What is the content that has this constituency so concerned? What are the real as well as perceived dangers for minors? What is being expressed and does it exceed the acceptable bounds of civil liberties? (It should not go unnoticed that had the CDA not been struck down we would not be able to do such an analysis.)
As educators, we cannot ignore the fact that there are patently offensive, by anyone's imagination or definition, materials available on the Internet and World Wide Web. At their extreme, these materials display abuse and victimization of people, most often women, abuse that arouses at a minimum sadness, anger and fear as well as other emotions.
Several years ago, after being asked to review such material for potential violation of child pornography law, I wrote: "I have discovered that there is a war going on within me around this topic. My body and feelings scream out for censorship and even violence against the creators of some of the material - reactions that are quite foreign to my usual manner of doing business. My mind reasons and rallies energy to maintain reasoned discourse about Liberty, about freedoms, about fairness, and about the balance of power."
It was most striking to me at that time that after viewing these materials I experienced several weeks of sadness nearing depression. It was sadness that such material could exist, that it could even be conceived, and that it could possibly, and probably, have been produced under force or duress. It was also persistent worry that my daughter, then a 16-year-old first-year college student, might have to prematurely think about these issues at a time when her own sexuality and sense of self was just fully developing. It was also anger at the effect the material had on me, an administrator and professor, who had walked on the campus day and night for years without fear and was now suddenly feeling hesitant and afraid.
We claim and aggressively protect the right to academic freedom, freedom to study, to explore, to question, to be exposed to things and ideas that shake our values and ideas, and press us forward in the formulation of better and more reasoned discourse and conceptions. Defending such principles on the one hand, and doing less than opening active campus-wide forums on these topics is hypocritical. As institutions of higher education we must engage the issues.
2. Teaching the Power and Exercise of Free Speech
Colleges and universities must actively engage these issues, and open them to the light of public scrutiny and to reasoned discourse. We need to understand why women and men are being depicted in these ways and why an industry that is built on distribution of materials such as these thrives in an age of increased awareness of women's rights and equality between sexes. Following the notions of Louis Brandeis when he chastised himself for simply concurring with a court decision, we must not just think at the issue, but through it.
College and university communities, faculty, staff and students can learn to exercise the power of free speech by engaging this issue. In real time, not just abstractly, individuals can learn what it means to be free to speak their minds and beliefs. Communities and individuals can learn from their very diversity and strive toward greater maturity. But this can happen only if the environment is protected for such freedom of speech, such an exercise of differences. "A college or university is a just community, a place where the sacredness of each person is honored and where diversity is aggressively pursued" (Ernest Boyer).
The challenge is that if we believe in the mission of universities to uncover and create truth, as uncomfortable and conflicting as it might be, we must examine, discuss and analyze the existence of the most extreme of these materials to clarify and reinforce the boundaries of civil liberties. Oliver Wendell Holmes wrote: ". . . . the Constitution mandates 'the principle of free thought - not free thought for those who agree with us but freedom for the thought that we hate . . . The ultimate good desired is better reached by free trade in ideas and the best test of truth is the power of the thought to get itself accepted in the competition of the market." Likewise, Louis Brandeis, concurring in Whitney v. California 1927, wrote: "If there be time to expose through discussion the falsehood and fallacies, avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."
If we believe in teaching moments where individuals and communities can be moved forward to higher levels of social awareness, sensitivity and cognition, where they can learn to listen to the expression of different ideas and beliefs, and to exercise their freedoms by practicing expressing their own beliefs, this is the time. The Supreme Court and Congress have given it to us.
A few months ago I had the occasion to call a second-year student into my office in response to several complaints about a file he had attached to his Web page. In this interaction, I was struck by several facts.
1) The student was shocked and embarrassed to find out that I had reviewed these pages myself and was now face-to-face telling him that I had seen the material and found it hurtful and offensive. Like many students and new users of electronic networks, he had accepted the seeming anonymity of electronic communications and was now confronted with another reality - that real people connected him with his electronic behaviors.
2) The student was not fully aware of the contents of his own files. He received many of the pictures from roommates and simply added them to his fi le. Like many students he had not considered the potential of copyright violation, or of illegal material such as child pornography.
3) The student responded at first like a young child, caught with his hand in the cookie jar before dinner, smiling and avoiding gaze. Like many students he had acted without thinking of the consequences, the potential for interpersonal discredit, for violation of law, and/or potential harm to others.
3. Developing Campus Policy Against Censorship
Colleges and universities need to review the adequacy and robustness of their policies in light of the new technological capabilities. Do they have a policy that guides the community with regard to free speech and protects against censorship? What is the statement of campus values regarding display of divergent and dissenting opinions, expressions of art, honest statement of beliefs and feelings? Does the community protect even the most offensive of political opinions or does it restrict and shout them down - effectively silencing them from the ears that find them most disturbing?
Michigan has had such a policy statement in place since 1994. The policy seeks to empower individuals as they make choices. As aggressively as it protects against censorship based on content, it protects individual's rights to choose what content they wish to access or to which they are exposed. It reminds individuals of their rights as well as their responsibilities to others.
4. Promoting the Democratization of the Networks
The dynamics of recent Congressional and Supreme Court decisions and the way in which thousands of Internet and World Wide Web users received and provided information regarding the issues, may be one of the most striking incidents of electronic citizenship ever to be witnessed. The fact that the Supreme Court decision was in the hands of many of us within minutes of being issued, was in and of itself an amazing aspect of informing the citizenry. However, we must not lose sight of the fact that the citizenry that was informed, even on our own campuses, is only a small segment of the entire population. For all to whom issues of Constitutional rights are critical, this represented a very small portion indeed.
Neither must we loose sight of the fact that this amendment became law, many believe, by some who have little knowledge of the technology to which it refers. It is a danger to the democratic process that technology is developing so quickly that laws cannot be written or interpreted, and that interpretations of law and existing conflicts hang perilously on the technical understanding or lack thereof of attorneys and judges.
In like fashion, the technology that can be used to provide enormous quantities of information to the populous can be used for good or evil. Constant vigilance is needed to ensure that through critical thinking and openness of speech and the press, information is subjected to the test of truth.
Colleges and universities have a significant role to play in teaching about the capabilities of the technologies, in insisting on critical thinking skills in the curriculum, and in ensuring basic rights for the processing of information that is being so quickly and widely circulated by the new technologies. "Laws can embody standards, government can enforce laws, but the final task is not a task for government. It is a task for each and every one of us. Every time we turn our heads the other way when we see the law flouted - when we tolerate what we know to be wrong - when we close our eyes and ears to the corrupt because we are too busy, or too frightened - when we fail to speak up and speak out - we strike a blow against freedom and decency and justice" (Robert F. Kennedy, A New Day 1961).
Challenges Ahead
Colleges and universities are heaving a sigh of relief at the wisdom of the Supreme Court. The decision recognized the nature of the new electronic mode of communication and information sharing, reaffirmed the importance of empowered citizenry through freedom of speech, and reaffirmed the rights of individuals as opposed to governments.
Relief yes, but there are real challenges ahead. An act that was seriously flawed in terms of its constitutionality was quietly attached to a major telecommunications reform law, debated only minimally by committees in the House and Senate, unanimously voted into law by Congress, and signed by the President of the nation. Notions of zones of safety, rating systems for content, the common good vs. individual rights, and protection of minors will continue to be debated and challenged.
Colleges and universities play an important role in developing the citizens who will use new technologies. We must engage the issues at hand to understand the underlying concepts and causes, teach the power and exercise of free speech to developing citizens, develop campus policy that models non-censorship and promote the democratization of the Net to ensure even fuller democratic processes in the future.
Virginia Rezmierski is director, Office of Policy Development and Education, Information Technology Division, at the University of Michigan. [email protected]